COMMONWELATH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Student v. Boston Public Schools -BSEA # 08-0443

Ruling on Boston Public Schools’ Motion to Join the Department of Mental Health

On August 15, 2007, Boston Public Schools (Boston) filed a Motion to Join the Department of Mental Health in the above referenced matter.

The Department of Mental Health filed an Opposition to Boston’s motion for joinder also on August 15, 2007 and later submitted a Memorandum of Law in support of its Opposition on August 22, 2007.

LEGAL STANDARD:

Federal special education law and regulations require establishment of a mechanism for interagency coordination to resolve any disputes regarding responsibility for providing special education and related services to students where multiple public entities may share the responsibility for ensuring that students receive a Free Appropriate Public Education (FAPE). 20 U.S.C. §1412(12)(A); 34C.F.R. 300.142(a). In Massachusetts, this responsibility is placed with the BSEA under Chapter 159, section 162 of the Acts of 2000, amending M.G.L. 71B§3.

As previously discussed in the Joinder Ruling In Re: Student v. Boston Public Schools , BSEA # 06-6542, issued on July 25, 2006,

The Massachusetts Special Education Regulations grant jurisdiction to the BSEA over State agencies in order to provide for the resolution of differences between parties regarding provision of services to special education students. 603 CMR 28.08(3).1 The Regulations provide that the BSEA may determine “in accordance with the rules, regulations, and policies of the respective agencies” that services must be provided “in addition to the IEP services to be provided by the school district.” 603 CMR 28.08(3). Whereas in the case at bar, participation of the particular state agency is sought after the request for hearing has been filed, said participation may be obtained by filing a motion for joinder of the additional party. The rules governing joinder of a party are provided in Rule 1J of The Hearing Rules for Special Education Appeals. Upon receipt of a motion, joinder of a state agency may be ordered under Rule 1J if

1. complete relief cannot be granted by the originally named parties or

2. the third party has an interest in the matter and is so situated that the case cannot be disposed of in its absence.

Rule 1J further provides that the following factors must be considered in determining if joinder is warranted

1. risk of prejudice to the present parties;

2. the range of alternatives for fashioning relief;

3. the inadequacy of a judgment entered in the proposed party’s absence; and

4. the existence of an alternative forum to resolve the issues.

In order to join a state agency, the moving party “must be able to show, at least in a preliminary way, that it will be able to present evidence at a Hearing that may result in the entity being found responsible to offer some service…to the student.” In re: Boston Public Schools District , BSEA #02-4553 (2002, Figueroa.) If joinder is granted, the hearing officer may only order services consistent with the rules, regulations, and policies that govern the particular state agency. Any services ordered must fall within the array of services that the particular agency offers and there is a presumption that the student is eligible to receive said services. School districts are ultimately responsible for all types of placements required by a student for educational reasons, including residential placements, even if another state agency offers residential placements to its clients.2

FACTS:

1. Born on August 2, 1988, Student is nineteen years old, and is a resident of Boston for purposes of special education law.

3. In September 2004, Student was admitted to the Justice Resource Institute’s Centerpoint Program, a DMH “.10” intensive residential treatment program (IRTP).

4. Student’s Team convened on November 9, 2006, for an unscheduled re-evaluation. The Team agreed that Student should be placed at the Devereux School therapeutic day program. At that time, DMH was funding and agreed to continue to fund the non-educational residential component of Student’s placement.

5. In March 2007, DMH notified the parties of its intention to cease funding Student’ residential component effective June 2007. As a result, Student rejected the IEP3 , and filed a Request for Hearing with the BSEA on July 18, 2007. Student seeks funding of a residential placement at the Devereux School.

6. Prior to turning eighteen years of age, Student was a client of DMH “by exception” for child/adolescent services. By exception means that Student’s profile did not meet the DMH eligibility criteria but DMH made him eligible for placement purposes. As such, he was a patient at the Bournwood Hospital in 2004. He was later placed at Justice Resource Institute’s Centerpoint Intensive Residential Treatment Program until he no longer met the criteria to remain there.

7. Student turned eighteen years in August 2006 at which time he was placed at Devereux School, which is not a DMH facility. Boston did not agree to fund the non-educational portion of Student’s placement and DMH agreed to fund it through June 30, 2006. Thereafter, DMH agreed to continue funding of the non-residential portion until the proceeding before the BSEA concludes.

8. Upon turning eighteen, a new application for DMH services was submitted requesting continuing care adult services. This application was rejected. (DMH exhibit A) Student appealed the denial to DMH and is awaiting a hearing under 104 CMR 29.15(3). At present Student is not a DMH client although DMH continues to fund the non-educational portion of his placement at Devereux.

RULING:

Boston argues that DMH has had significant involvement with Student over the past several years, and has provided services. In light of Student’s mental health issues and related disabilities, and DMH involvement, Boston contends that DMH is a necessary party to the BSEA proceedings. It further states that DMH has special knowledge and information regarding Student since he spent the past two years in DMH facilities. According to Boston, DMH may be found responsible to provide services consistent with the DMH statute, regulations and policies, including the residential component of Student’s placement as an appropriate support. Therefore, this matter cannot be fully adjudicated in the absence of DMH. In Re: Medford Public Schools , BSEA # 01-3941 (May 31, 2002); In Re: Brockton Public Schools District , BSEA # 02-0310 (September 26, 2001). If the BSEA were to find that Boston is only responsible for the day portion of Student’s placement but that Student required residential placement, full adjudication of this matter could not be achieved in the absence of DMH.

DMH however, argues that joinder is premature because there has not yet been a determination of what services Student requires in order to receive a FAPE. Only after Boston’s obligations are determined, if the school district believes that DMH is legally obligated to provide or pay for any such services and DMH refuses, can an action against DMH be initiated at the BSEA. To proceed otherwise would cause unnecessary delays in resolution of the fundamental issues between Student and the district.

DMH states that Student was found to be ineligible to receive DMH services, and administrative remedies within that agency challenging said findings should be exhausted before any outside agency may review eligibility. It argues that jurisdiction of the BSEA extends only to those situations in which an agency is obligated under law (or by policy) to provide a particular services. Since Student is not a DMH client and since the appeal process has not concluded with that agency, the motion to join DMH is, in its opinion, premature. DMH also states that it is not a necessary party since full relief can be afforded in DMH’s absence, as the present dispute is between Student and Boston. Lastly it states that the mere desire for a cost-share on the part of Boston is insufficient to join DMH.

The evidence supports DMH’s position in the present case. Even though DMH may be funding the residential portion of Student’s placement at Devereux, under its rule and regulations it is under no obligation to do so as Student at the present time has not been found to be eligible to receive DMH services; a necessary component if joinder is to be considered. The authority of the BSEA under 603 CMR 28.08 does not extend to adjudging eligibility issues within that other agency. To join DMH at this time is therefore, premature. The parties may call DMH service providers as witnesses at hearing if they believe that DMH has information that would support their positions.

It is unclear from the documents who if anyone, obtained guardianship of Student when he turned eighteen, therefore, for purpose of this ruling I assume that nobody has guardianship of him at this time.

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